FIRST DIVISION

[G.R. No. 137873. April 20, 2001.]

D.M. CONSUNJI, INC., petitioner, vs. COURT OF APPEALS and MARIA J. JUEGO, respondents.
DECISION
KAPUNAN, J p:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D.M. Consunji, Inc., fell 14 floors from the
Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November 25,
1990, stating that:
. . . . [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of
the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with
Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam
(steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose . . . causing the whole [p]latform
assembly and the victim to fall down to the basement of the elevator core, Tower D of the building under
construction thereby crushing the victim to death, save his two (2) companions who luckily jumped out
for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board
and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the
pin which was merely inserted to the connecting points of the chain block and [p]latform but without a
safety lock. 1
On May 9, 1991, Jose Juego's widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for damages
against the deceased's employer, D.M. Consunji, Inc. The employer raised, among other defenses, the widow's prior
availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC decision
reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1.P50,000.00 for the death of Jose A. Juego.
2.P10,000.00 as actual and compensatory damages.
3.P464,000.00 for the loss of Jose A. Juego's earning capacity.
4.P100,000.00 as moral damages.
5.P20,000.00 as attorney's fees, plus the costs of suit.
SO ORDERED. 2
On appeal by D.M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D.M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED
FROM RECOVERING DAMAGES UNDER THE CIVIL CODE. 3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled
otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal knowledge, that
is, which are derived from his perception. 4 A witness, therefore, may not testify as what he merely learned from others
either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as
proof of the truth of what he has learned. 5 This is known as the hearsay rule. HAICcD

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to
written, as well as oral statements. 6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and
exposed by the test of cross-examination. 7 The hearsay rule, therefore, excludes evidence that cannot be tested by
cross-examination. 8
The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records. Section 44, Rule
130 provides:
Entries in official records made in the performance of his duty by a public officer of the Philippines, or by
a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts
therein stated.
In Africa, et al. vs. Caltex (Phil. ), Inc., et al., 10 this Court, citing the work of Chief Justice Moran, enumerated the
requisites for admissibility under the above rule:
(a)that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b)that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and
(c)that the public officer or other person had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court. In Rodriguez
vs. Court of Appeals, 11 which involved a Fire Investigation Report, the officer who signed the fire report also testified
before the trial court. This Court held that the report was inadmissible for the purpose of proving the truth of the
statements contained in the report but admissible insofar as it constitutes part of the testimony of the officer who executed
the report.
. . . . Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perception and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may

then be considered as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has
been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may constitute a
fact in issue, or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself
available for cross-examination by the adverse party, the Report, insofar as it proved that certain
utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony
in open court of the officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as prima
facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are
necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which
the officials would be summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work something is not done in which
testimony is not needed from official sources. Were there no exception for official statements,
hosts of officials would be found devoting the greater part of their time to attending as
witnesses in court or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge
of their duty may be given in evidence and shall be taken to be true under such a degree of
caution as to the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination,
and this Court would have agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the sources of information of

Major Enriquez failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements contained
therein but is admissible insofar as; it constitutes part of the testimony of PO3 Villanueva.

In any case, the Court holds that portions of PO3 Villanueva's testimony which were of his personal knowledge suffice to
prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juego's remains at the
morgue, 12 making the latter's death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises
of the building the day after the incident 13 and saw the platform for himself. 14 He observed that the platform was
crushed 15 and that it was totally damaged. 16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to
the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without any pin
or bolt. 17
What petitioner takes particular exception to is PO3 Villanueva's testimony that the cause of the fall of the platform was
the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to
certain exceptions, 18 the opinion of a witness is generally not admissible. 19
Petitioner's contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The effect of
the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having
charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. 20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or
injury will not generally give rise to an inference or presumption that it was due to negligence on
defendant's part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or
circumstances accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is charged with
negligence.
. . . where it is shown that the thing or instrumentality which caused the injury complained of was under
the control or management of the defendant, and that the occurrence resulting in the injury was such as

in the ordinary course of things would not happen if those who had its control or management used
proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence
of explanation by the defendant, that the injury arose from or was caused by the defendant's want of
care. 21
One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. 22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to
allege negligence in general terms and to rely upon the proof of the happening of the accident in order
to establish negligence. The inference which the doctrine permits is grounded upon the fact that the
chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant
but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains.
The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of
the defendant to show that there was no negligence on his part, and direct proof of defendant's
negligence is beyond plaintiff's power. Accordingly, some courts add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine
to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause
of the accident, or that the party to be charged with negligence has superior knowledge or opportunity
for explanation of the accident. 23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar: SHIETa
There is no dispute that appellee's husband fell down from the 14th floor of a building to the basement
while he was working with appellant's construction project, resulting to his death. The construction site
is within the exclusive control and management of appellant. It has a safety engineer, a project
superintendent, a carpenter leadman and others who are in complete control of the situation therein.
The circumstances of any accident that would occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind which does not

ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the person injured. . . . .
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule
of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and
human resources that likely caused the injury is under the exclusive control and management of
appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the
appellee's deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or inference of
appellant's negligence arises. . . . 24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the
presumption or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident
which befell respondent's husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant's negligence is
presumed or inferred 25 when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the
plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. 26 The
presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a
disputable presumption, such as that of due care or innocence, may outweigh the inference. 27 It is not for the defendant
to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say,
due care, comes into play only after the circumstances for the application of the doctrine has been established.
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator
as evidence of its due care. According to Fabro's sworn statement, the company enacted rules and regulations for the
safety and security of its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its
use.
It is ironic that petitioner relies on Fabro's sworn statement as proof of its due care but, in arguing that private respondent
failed to prove negligence on the part of petitioner's employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabro's sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under
the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The inadmissibility of this sort of
evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also
on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his

own language in writing the affiant's statements which may either be omitted or misunderstood by the one writing
them. 29 Petitioner, therefore, cannot use said statement as proof of its due care any more than private respondent can
use it to prove the cause of her husband's death. Regrettably, petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the application of res ipsa loquitur, or to establish any defense
relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided under the Labor
Code and is, therefore, precluded from claiming from the deceased's employer damages under the Civil Code.
Article 173 of the Labor Code states:
ARTICLE 173.Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on behalf of the employee or his
dependents. The payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered
by the System or by other agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen's Compensation Act, provided that:
SECTION 5. Exclusive right to compensation. The rights -and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights and
remedies accruing to the employee, his personal representatives, dependents or nearest of kin against
the employer under the Civil Code and other laws because of said injury . . . .
Whether Section 5 of the Workmen's Compensation Act allowed recovery under said Act as well as under the Civil Code
used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca vs. Philex Mining
Corporation, 30 which involved a cave-in resulting in the death of the employees of the Philex Mining Corporation.
Alleging that the mining corporation, in violation of government rules and regulations, failed to take the required
precautions for the protection of the employees, the heirs of the deceased employees filed a complaint against Philex
Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc, 31 following the rule
in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have
a right of selection or choice of action between availing themselves of the worker's right under the
Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher damages
(actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers
or whether they may avail themselves cumulatively of both actions, i.e., collect the limited compensation
under the Workmen's Compensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled
that an injured worker has a choice of either to recover from the employer the fixed amounts set by the
Workmen's Compensation Act or to prosecute an ordinary civil action against the tort-feasor for higher
damages but he cannot pursue both courses of action simultaneously. [Emphasis supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code
despite having availed of the benefits provided under the Workmen's Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968
before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of
August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments . . . .
Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated
May 27, 1968 . . . in the lower court, but they set up the defense that the claims were filed under the
Workmen's Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter
dated October 19, 1967 only . . . .
WE hold that although the other petitioners had received the benefits under the Workmen's
Compensation Act, such may not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been aware
of said violation of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmen's Compensation Commission which awarded a lesser amount
for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which

nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the
lower court for further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmen's Compensation Act should be deducted from the
damages that may be decreed in their favor. [Emphasis supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation
vs. Avelino, 32 Vda. de Severo vs. Feliciano-Go, 33 andMarcopper Mining Corp. vs. Abeleda. 34 In the last case, the
Court again recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court
said: aIHCSA
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmen's Compensation Law, to the exclusion of all further
claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the
claimants may invoke either the Workmen's Compensation Act or the provisions of the Civil Code,
subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant who has already been paid under the
Workmen's Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Emphasis supplied.)
Here, the CA held that private respondent's case came under the exception because private respondent was
unaware of petitioner's negligence when she filed her claim for death benefits from the State Insurance Fund. Private
respondent filed the civil complaint for damages after she received a copy of the police investigation report and the
Prosecutor's Memorandum dismissing the criminal complaint against petitioner's personnel. While stating that there
was no negligence attributable to the respondents in the complaint, the prosecutor nevertheless noted in the
Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception in Floresca:
. . . We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigator's report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation to
the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence
Resulting to Homicide" against appellant's employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to the prosecutor's office. This. is a standard
operating procedure for police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro . . . are being charged by
complaint of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not

have a chance to appear before the public prosecutor as can be inferred from the following statement in
said memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the appellee.
Hence, notice of appellant's negligence cannot be imputed on appellee before she applied for death
benefits under ECC or before she received the first payment therefrom. Her using the police
investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutor's Office dismissing the
criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the records this
case is civil in nature." (Emphasis supplied.) Considering the foregoing, We are more inclined to believe
appellee's allegation that she learned about appellant's negligence only after she applied for and
received the benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling. 35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
. . . . Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband;
and that she did not know that she may also recover more from the Civil Code than from the
ECC. . . . . 36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that her
application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an issue
submitted during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as November
28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting to Homicide"
against petitioner's employees. On February 6, 1991, two months before the filing of the action in the lower court,
Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient evidence against petitioner's
employees, the case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the ECC
on January 2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies available to
her and yet she chose to claim and receive the benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and
bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The

first act of election acts as a bar. 37 Equitable in nature, the doctrine of election of remedies is designed to mitigate
possible unfairness to both parties. It rests on the moral premise that it is fair to hold people responsible for their choices.
The purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong. 38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a
claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under
the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right. 39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not
to assert them. It must be generally shown by the party claiming a waiver that the person against whom
the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party's
rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is
no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the
facts basic to the exercise of the right waived, with an awareness of its consequences. That a waiver is
made knowingly and intelligently must be illustrated on the record or by the evidence. 40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner's contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had
availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising waiver as
an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its
Answer; 41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial court
had no jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husband's death and the rights
pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as
a basis for nullifying the waiver is thenegligence of petitioner's employees, of which private respondent purportedly

learned only after the prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was
the negligence of the mining corporation and its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the
courts have the final say. Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the
principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on
November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation report is dated
November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the application in her behalf on
November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim before the ECC
was filed. On the contrary, private respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from compliance
therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the Philippine legal system
(Article 8, Civil Code), private respondent cannot claim ignorance of this Court's ruling in Floresca allowing a choice of
remedies. AaSHED
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws. 42 This may be
deduced from the language of the provision, which, notwithstanding a person's ignorance, does not excuse his or
her compliance with the laws. The rule in Floresca allowing private respondent a choice of remedies is neither mandatory
nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total amount private
respondent ought to receive from the ECC, although it appears from Exhibit "K" 43 that she received P3,581.85 as initial
payment representing the accrued pension from November 1990 to March 1991. Her initial monthly pension, according to
the same Exhibit "K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is
subject to speculation, and the case is remanded to the trial court for such determination. Should the trial court find that its
award is greater than that of the ECC, payments already received by private respondent under the Labor Code shall be
deducted from the trial court's award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent
double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed
in its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that awarded by

the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all
other respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
||| (D.M. Consunji, Inc. v. Court of Appeals, G.R. No. 137873, [April 20, 2001], 409 PHIL 275-302)